1. No transfer – of any right, title or interest in any immovable property – except by way of a registered document – sections 54 and 55 of the Transfer of Property Act
Immovable property can transferred only by a registered document. There can be no transfer of any right, title or interest in any immovable property except by way of a registered document.
This Court clearly held that an agreement to sell which is not a registered deed of conveyance would not meet the requirements of sections 54 and 55 of the Transfer of Property Act. With respect to section 53A of the Transfer of Property Act, it is well-settled that the same can only be used as a defence in proceedings initiated by the transferor or by any person claiming under him.
Greater Bombay Co-operative Bank Ltd. v. Nagaraj Ganeshmal Jain and Others: AIR 2017 Supreme Court 3548
2. Compensation – Insurer’s liability to pay – Insurer’s liability to compensation continues even if vehicle stood transferred to another
The scheme of the Act shows that an insurance policy can cover three kinds of risk, i.e. owner of the vehicle; property (vehicle) and third party. The liability of the owner to have compulsory insurance is only in regard to the third party and not to the property.
Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use.
The Court held that whenever a vehicle which is covered by the insurance policy is transferred to a transferee, the liability of insurer does not cease so far as the third party/victim is concerned, even if the owner or purchaser does not give any intimation as required under the provisions of the Act.
Section 157 sub-section (1) contains the deeming provision that “the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of this transfer.”
Firdaus v. Oriental Insurance Co. Ltd. & Ors : AIR 2017 Supreme Court 3572
3. Intermediate order – Can exercise its revision jurisdiction – Since it is not an interlocutory order
There are three categories of orders that a Court can pass – final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction – that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order.
The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind – an order taking cognisance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognisance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour. Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings would terminate but if passed in another way, the proceedings would continue.
Girish Kumar Suneja v. C.B.I.: AIR 2017 Supreme Court 3620
4. Transfer of land by way of sale – Suit property was ‘Chakout’ and outside purview of consolidation scheme – permission of settlement officer not required before transferring it
The purpose of a consolidation scheme is to provide consolidation of agricultural holdings. Abadi land, groves etc. are kept outside the scope of consolidation scheme. They cannot be reallocated or reallotted to any other person. Therefore, strictly speaking, they are not subject matter of the consolidation scheme. The intention of introducing section 5(c)(ii) of the Act was that if the land holding is subject to consolidation proceedings then permission of the Settlement Officer (Consolidation) is required before the same is transferred. This is so because if the land, which is subject matter of consolidation proceedings, is sold or permitted to be transferred during consolidation proceedings, it could affect the entire consolidation scheme. However, if the land is not subject matter of the consolidation scheme, though it may be part of the holding of the tenure holder, then no permission is required. Admittedly, the suit property was “Chakout” and outside the purview of the consolidation scheme in as much as its value could not be taken into consideration while framing the scheme and it could not be allocated or allotted to any other person. Hence, no permission of settlement officer was required to sell land in question.
Suraj Pal (D) Thr. Lr. v. Ram Manorath & Ors. : AIR 2017 Supreme Court 3825
5. Misconduct by Advocate – on –record (AOR) – Interference with administration of justice – AOR, contemnor making allegations against Registry for indulging in malpractice of Bench hunting to benefit and serve interest to his client – Allegations against Registry found to be false
It is duty of an advocate to put his best case for the litigant before the Court. This, however, does not absolve him of the responsibility as an officer of the Court. It is a dual responsibility. The right of an Advocate-on-Record in the Supreme Court, is not an automatic right coming from the enrollment at the Bar. Something more has to be done. The rigours of an examination have to be gone through, which tests the advocate, not only on his legal ability of drafting and knowledge of law, but on ethical practices. It is only after going through the rigourous exercise that an advocate is enlisted as an Advocate-on-Record, giving him the right to act and file pleadings before this Court, in accordance with the Supreme Court Rules, 2013.
A perusal of the relevant Rule contained in Order IV, Rule 5 requires, inter alia, even training for one year with an Advocate-on-Record, who has been approved by the Court, prior to the appearance in the test, so that the prospective Advocate-on-Record is well grounded in the various professional aspects. The requirements regarding the Advocate-on-Record examination, held under the general policy of the Committee of Judges appointed by the Chief Justice, requires testing in the practice and procedure of Supreme Court, drafting, advocacy and professional ethics and leading cases.
In Re : Mohit Chaudhary, Advocate : AIR 2017 Supreme Court 3836
6. Mortgage by conditional sale –Essentials
The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58(c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.
Vithal Tukaram Kadam and Another v. Vamanrao Sawalaram Bhosale and Others: AIR 2017 Supreme Court 3853
7. Perverse Judgment and perverse finding – what is – Explained
Judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court’s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
M/s. Gabion Technologies India Pvt. Ltd. v. M/s. Amcon Master Builders Missarwala: AIR 2017 Himachal Pradesh 140
8. Refuse to register document – Result in civil consequences
Refusing to register a document under Section 22-A of the Registration Act, in order to cope with the rule of law, the registering authority should follow the Audi Alteram Partem principle by issuing notice and affording a real opportunity to the parties concerned. We are conscious of the fact that there is no explicit provision in the Act for issuing such notice to the parties by the registering authority and to hold a summary enquiry. But that would not deprive the parties concerned to have sufficient opportunity in tune with the principles of natural justice which is mandatory as held by the Hon’ble Supreme Court in the above decisions as refusing to register a document under Section 22-A of the Act results in civil consequences. Further the impugned orders are one line orders which do not even contain the reasons to refuse. In other words, these are all non-speaking orders which can be classified as arbitrary orders.
Sudha Ravi Kumar and another v. The Special Commissioner and Commissioner, Hindu Religious and Charitable Endowments Department, Chennai and Another: AIR 2017 Madras 203
9. ‘Tenant holding over’ and ‘tenant at sufferance’ – Distinction
The expression of ‘tenants at sufferance’ is merely a fiction to distinguish their unlawful possession from that of trespassers. The possession of a ‘trespasser’ is lawful both in its inception and in its continuance, whereas the possession of a tenant at sufferance is rightful in its inception, but wrongful in its continuance. A distinction is drawn between a tenant continuing in possession after the determination of the lease without the consent of the landlord, and tenant doing so with the landlord’s consent. The former is called a tenant by sufferance and the latter class of tenants is called a tenant holding over or a tenant at will. The act of holding over in any event after expiration of the term does not necessarily create tenancy of any kind; if the lessee remains in possession after determination of the term and for all practical purposes, he becomes a tenant at sufferance.
Mamata Panigrahy @ Panigrahi and Another v. Hemalata Dalai & Another : AIR 2017 Orissa 122
10. Recovery of debt – Financial Institutions taking resort to provisions of SARFAESI Act – They are under obligation to follow the same – Cannot invoke provisions of Transfer of Property Act, 1882, when they are confronted with non-compliances on mandatory provisions of SARFAESI Act
The power of secured creditors to initiate the proceedings in case of defaults and/or non payment of borrowers, obligations, definitely needs to be respected in view of the specific provisions in all respects. The measures, so available under the Act therefore, are to be followed by the financial institutions but strictly in accordance with law and the mandate so provided at every stage of proceedings so initiated for recovery of the secured debts. The enforcement of security interest/debts by invoking the provisions of SARFAESI Act to be in addition to and/or not in derogation of any other law. The other provisions of other Acts are available as mentioned under Section 37. Therefore, they can proceed ahead with taking steps to recover the debts by selling the property and by taking recourse to the other provisions, by following the due procedure and course so available under the other laws. The provisions are in addition, when there is any doubt and/or otherwise. The SARFAESI Act provisions are not in derogation of any other law.
Their actions of taking steps in the present case, are in breach of provisions of SARFAESI Act and therefore, not acceptable and/or permissible. The remedy of TP Act and/or other provisions in view of non-obstante clause as provided under section 13(1) itself make the position clear that there are other remedies for such recovery to the secured creditors. The financial institutions are free to do so. But having once invoked the SARFAESI Act, they have to strictly follow the provisions. The financial institutions, therefore, having acted upon the provisions of SARFAESI Act, they are under obligation to follow the same. The provisions of TP Act, therefore, cannot be invoked when they are confronted with the non-compliances of mandatory provisions of SARFAESI Act.
Blue Coast Hotels Limited v. IFCI Limited & Another: AIR 2017 (NOC) 686 (Bom).